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05/10/96 RICHARD DOE v. ROBERT J. LUTZ

May 10, 1996

RICHARD DOE, A MINOR, BY HIS NATURAL PARENTS AND NEXT FRIENDS, JOHN DOE AND JANE DOE, *FN1 PLAINTIFFS-APPELLANTS,
v.
ROBERT J. LUTZ, DEFENDANT-APPELLEE, AND ALICE HALPIN, THE CATHOLIC BISHOP OF CHICAGO, A CORPORATION, JOSEPH CARDINAL BERNADIN, THE CARDINAL ARCHBISHOP OF THE ROMAN CATHOLIC DIOCESE OF CHICAGO, DEFENDANTS.



Appeal from the Circuit Court of Cook County. The Honorable Jerome Lerner and Richard J. Elrod, Judges Presiding. This Opinion Substituted by the Court for Withdrawn Opinion of May 7, 1996, Previously

As Modified on Denial of Rehearing June 25, 1996.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Divito

Modified Upon Denial of Rehearing

The Honorable Justice DiVITO delivered the opinion of the court:

"Richard Doe," by his parents referred to herein as "John Doe" and "Jane Doe," filed an action against Robert Lutz, the pastor of St. Norbert's Parish, Alice Halpin, the principal of St. Norbert's School, and others alleging instances of verbal, physical, sexual, and emotional abuse directed against Richard while he was a first and second-grade student at St. Norbert's School from 1986-88. A jury found for defendants. Plaintiffs subsequently filed a section 2-1401 motion for a new trial which was denied. 735 ILCS 5/2-1401 (West 1992). Plaintiffs now maintain, in this consolidated appeal of only the judgments for Lutz, that numerous errors occurred during the trial and that the circuit court erred in denying his section 2-1401 motion. For the following reasons, the judgments of the circuit court are affirmed.

THE ALLEGATIONS OF ABUSE

At trial, Richard testified that during the first and second grades he was involved in numerous playground fights. Although the playground was patrolled by adults, other children, including G.D., ganged up on Richard in an area that could not be seen by the patrollers. These incidents often resulted in Richard being sent to Halpin's office.

During first grade (1986-87), Richard was sent to Halpin's office four or five times. Each time, Halpin and Lutz were present. They would close the door and say such words as "asshole" and "fucker." Once or twice, Lutz threatened to kill Richard and his parents if he told anyone about what had occurred.

During second grade (1987-88), Richard was sent to Halpin's office four or five times. Once again, Halpin and Lutz were present on each occasion, and they closed the door and said "asshole" and "fucker" to him. The following incidents of physical and sexual abuse also occurred: Lutz hit Richard in the groin and stomach once or twice, Lutz and Halpin once rolled on the ground unclothed, Lutz kicked Richard in the face while wearing his shoes (although Richard was not knocked down or bruised), and Lutz rubbed his penis against Richard's face and "butt" while Richard was unclothed. All of the alleged incidents occurred during the 15-minute recess periods.

Alice Halpin denied each of Richard's allegations. She did not recall any contact with Richard during first grade, and her contact in second grade was limited to two occurrences. Once, her secretary brought Richard, who had a bloody nose, to Halpin's office door, but he did not enter. On another occasion, Mrs. Briggs, a playground supervisor, brought five or six students into Halpin's office at the end of a playground period. Richard had screamed in another boy's face, the boys began pushing each other, and a scuffle had broken out. Everyone apologized and was sent back to class.

Halpin also testified that she and Lutz were never in her office with a child for any reason.

Father Lutz, a priest for 44 years, denied each of Richard's allegations. He was never in Richard's presence except during religious services when Richard was with his parents. He stopped by Halpin's office for a few minutes every couple of days. If Halpin was talking with a student, he would only say hello. If he needed to talk with Halpin, the student would leave.

Paula Greene, Richard's second-grade teacher and a close friend of the Does, testified that she knew of only one occasion when Richard was sent to Halpin's office. After he and G.D. scuffled, both visited the office and returned to class acting normally.

Dorothy Cacioppo, the school secretary who worked outside of Halpin's office, testified that she did not see Richard visit Halpin's office on multiple occasions as he alleged. Cacioppo also denied that Halpin ever screamed or swore at children.

THE REVELATIONS OF ALLEGED ABUSE

Jane Doe, an attorney who represented abused children at the public guardian's office for 4 1/2 years, testified that Richard began performing poorly in school and acting oddly at home during the second grade. She contacted Paula Greene; Dr. Anne Brown, a clinical psychologist; and Dr. Rita Sussman, a psychologist. Over the course of seven sessions with Richard, Sussman performed educational testing and a psychological diagnostic evaluation. Sussman found that Richard suffered from profound anxiety and he had difficulty living up to his parents' expectations. She recommended that Richard see an educational specialist and a psychotherapist. During one session which Jane and John Doe attended, Richard said that he was regularly being beaten up on the playground. Richard began seeing a reading therapist, but he did not enter psychotherapy.

John Doe, an attorney in private practice, testified that on July 19, 1988, he and his wife met with Lutz and told him about the playground beating accusations. Lutz did not know anything about the fighting and suggested that they speak with Halpin. On July 21, the Does met with Halpin, and she said that the children were being watched and no beatings had occurred. Halpin said that Richard must have imagined the beatings. The meeting turned confrontational and John announced that Richard would be removed from the school.

Greene testified that the Does visited her at her home on the evening of July 21 and, in Richard's presence, John, in a rage, vowed to get even with the church and hit it "in the pocketbook, *** the only place they care about."

Jane testified that shortly more than a week later, on July 30, 1988, Richard asked if he could have a meeting about St. Norbert's with John and her. Anticipating the importance of the conversation, she tape recorded the event. At the meeting, Richard, while receiving praise and encouragement from his parents, accused Halpin of threatening to "melt [his] brain" and "dissect" him; of calling him a ...


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